August 2014 Issue 96

Time Is Ticking To Challenge A Will

B2B Editor1 August 2014

Time Is Ticking To Challenge A Will

On 14 May 2014, the ACT Legislative Assembly amended the Family Provision Act 1969 to reduce the time for making a family provision claim from 12 months to 6 months after probate is granted.

The Family Provision Act allows certain categories of people to challenge a Will after a person’s death if they feel that they have not been adequately provided for by the deceased person. A deceased person’s spouse and children are eligible applicants. Other family members may be eligible to make a claim depending on their circumstances at the time of the deceased person’s death.

Being an eligible applicant does not automatically entitle a person to a bigger share of the estate. The Court will take into account a number of factors to decide whether to make an order and, if so, the amount of the gift. The factors considered by the Court include the history of the relationship between the deceased person and the applicant, the size of the estate, the financial needs of the applicant and the conduct of the applicant.

The recent change to the time limit means that eligible applicants who want to make a claim against an estate must start proceedings in the Supreme Court no later than 6 months after the date of the Grant of Probate or Letters of Administration.

Before the change, the ACT had the longest period in Australia in which a family provision claim could be commenced. The rationale behind the amendment was to avoid undue delays in the administration and distribution of estates where family provision claims have been threatened but proceedings not commenced. In such circumstances, a wise executor should hold off from distributing an estate until the period for making a claim has expired. This can cause significant hardship for beneficiaries of an estate who must wait to receive their inheritance.

The reduced time period for making a family provision claim attempts to balance the rights of eligible applicants with the rights of beneficiaries under the Will. On the one hand, potential applicants should be given sufficient time to seek legal advice and the opportunity to negotiate a settlement without commencing formal legal proceedings. On the other hand, beneficiaries are interested in the efficient administration of the estate and wish to receive their inheritance without undue delay.

The time periods for making a claim vary significantly between Australian states and territories. For example, in New South Wales, a family provision claim must be commenced within 12 months from the date of death, irrespective of whether a Grant of Probate or Letters of Administration has issued.

In addition, the categories of people who are eligible to make a claim also varies between Australian states and territories. A person who is not eligible to make a family provision claim in the ACT may well be entitled to apply for provision in New South Wales or Victoria.

The recent change to legislation emphasises the importance of seeking expert legal advice and seeking that advice early. If you feel that you have been inadequately provided for in a Will, or you are wondering whether you are eligible to make a claim, you should get legal advice without delay.

Rebecca Tetlow is an Accredited Specialist in Wills and Estates Law (NSW) and a Senior Associate of the firm

phone (02) 6212 7600 [email protected],